From the beginning of Monday’s oral argument in Ohio Adjutant General’s Department v. Federal Labor Relations Authority, it was crystal clear that Ohio Solicitor General Benjamin Flowers would focus like a laser beam on the claim that the FLRA has no statutory authority to issue orders against state agencies.
“The Reform Act defines agencies to include executive departments, government corporations, and independent establishments,” he said, referring to a 1978 federal law that established collective-bargaining rights for employees of the federal government. “Adjutants General and state Guards are none of these things.” Ohio now clearly concedes that the dual-status National Guard technicians at issue in the case are federal employees by virtue of The Technicians’ Act. But, argued Flowers strenuously, that designation did not “convert” state agencies to federal agencies against whom the FLRA may issue orders. Justice Clarence Thomas underscored the concern: “That’s the leap that I’m having some difficulty with.”
But Justice Ketanji Brown Jackson focused on the congressional intent behind federal employee designation of the technicians — who are state employees for some purposes, and federal employees when engaged in other functions: organizing, administering, instructing, or training of the National Guard; and the maintenance and repair of supplies issued to the National Guard. Jackson asked, respecting the delegation of federal employee status to technicians, “Surely you’re not saying that we can just decide whatever we want about this policy without reference to what Congress intended.” Flowers responded: “As long as congressional intent is interpreted with respect to the statute.”
So, the textualist arguments were framed as Ohio might have liked. But the fly in the ointment continues to be that Ohio has acquiesced to the dual-employment arrangement — and benefitted from it — since the 1970s. The important factual context here is that when workers are engaged in federal employment they receive federal employment benefits (including the right to collectively bargain) and those benefits help the Guard recruit highly qualified individuals. Still, as Justice Neil Gorsuch hypothesized, the arrangement might trigger constitutional notions of federal commandeering were it not for broad state consent to this model of collective bargaining over the preceding half-century. Though — as developed during the argument — there were legislative efforts decades ago to upset the model, those efforts failed. Congress appears to have accepted the arrangement, even though it has not attempted to include the local Guard, or the state adjutant generals who act as the commanders of each state’s Guard, under the definition of “agency.” And Justice Sonia Sotomayor invoked what she called Justice Elena Kagan’s “venerable rule” (though she was actually quoting Kagan from the first case argued on Monday): “If it ain’t broke, don’t fix it.”
